Whining from the Applicant's Bar
William Nathans
Editor
I have been thinking alot lately about the whining coming from the applicant's bar. This is addressed to them.
What did you expect? Were you naive enough to expect that employers and carriers would just continue to pay for whatever you and your medical cronies could make “work related”? How long did you think you would get away with medical theories that had no basis in anything but performing walletectomies?
How long did you think the entitlement mentality train was going to run? It is not the employers and carriers who bastardized the system; the blame rests with you and the doctors who care more about their wallets then curing or relieving the effects of their pateint's injuries. It is amazing how you and your doctors have attempted to turn workers compensation into universal health care.
Your creativity with some of your medical theories is really quite amazing. It is worthy of a Hollywood blockbuster or a ride in fantasyland. How does it feel to know that because of your greed and avarice you are forced to pay the piper at the expense of your clients.
If you think that I am supposed to have sympathy for your plight, you are sadly mistaken.
Comments, questions, e-mail me at bill@adjustingworld.com
Plain and Commonsense Meanings … Maybe
Stephen L. Kline, Esq.
Armstrong Law Firm
stephenk@arm-law.com
One of the more significant changes made by SB899 was with Temporary Disability. Labor Code §4656(c)(1) provides that, “Aggregate disability payments for a single injury occurring on or after the effective date of this subdivision, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.”
Prior to the enactment of this section, Temporary Total Disability was unlimited and in some cases never-ending. We all have the horror stories in our old files. Don’t get me started.
But, what does “commencement of temporary disability payment” mean?
For example, assume an injury occurs on July 16, 2004, and because of an investigation, an AOE/COE trial and other legitimate delays, temporary disability payments do not begin until May 3, 2005. Assume also that when the May 3rd payment is made, it included the TD from July 16, 2004 to that date and the 4650(d) penalty.
What should be the last day of temporary disability eligibility?
July 16, 2006 or May 3, 2007 or some other date.
Sitting en banc, which means their ruling has the force of precedent and law over the Workers Compensation Judges, Chairman Joseph Miller write in Hawkins v Amberwood Products that the plain and commonsense meaning of the statute means that the two years begins on the date TD is first paid and not owed. The answer to the question above is May 3, 2007. Mr. Miller went on to state that it did not matter when TD was owed, because the statute used the term ‘payment’.
Interestingly, Commissioner Brass wrote a strong dissent. He noted that the majority failed to give full effect and meaning “to the aggregate amount of 104 compensable weeks within the two years allowed by the Legislature”. He argued that if you start the two years at May 3, 2005, the employer could be pay more than 104 weeks of temporary disability. He argues unsuccessfully that the Legislature’s overall cost cutting scheme is set back.
Countering, the majority opinion urges employers to start temporary disability promptly to obtain the SB 899 benefits.
There is also a benefit not stated in the decision. With a cumulative trauma claim, the date of first payment of TD establishes the date of injury via Labor Code §5412.
An open issue not discussed or decided by the WCAB are the exceptions to the 104 weeks listed in Labor Code §4656(c)(2) including the word amputation. CAAA wants an amputation to be interpreted as the removal of any body part which would mean even a hair follicle. Did you have hair amputated this week? More on this in the coming months.
The day after the Hawkins case was issued, the Board designated the Romero v Costco Wholesale case as a Significant Panel Decision. This means that this decision takes precedent with the Worker Compensation Judges.
Ms. Romero was unrepresented and her doctor made certain treatment requests. The employer challenged those requests under Labor Code §4062.1 and consequently requested a Panel of orthopedists be issued by the Administrative Director.
After issuing the Panel and before the appointment occurred, the employee became represented. The new AA and the employer talk a little and no AME is agreed upon. AA then requests the Administrative Director to issue a new Panel, but this time with the specialty of chiropractor. Can we see where this is going?
The Administrative Director refused to issue a second panel and the AA made a motion to compel the AD to issue a new panel with the chiropractic specialty. The Workers Compensation Judge agreed and the defendants sought removal.
The WCAB denied removal on the basis that the employee had not received a comprehensive medical-legal evaluation until the employee attends and participates in the panel qualified medical evaluator’s examination. Thus, they ordered that the AD issue a second panel with the chiropractic specialty designated.
The WCAB didn’t discuss in its opinion the designation of a chiropractor over an orthopedist, (probably because it wasn’t raised). While this specific case looks favorable to employee, this decision may be beneficial to employers to get a second bite on bad panels when the conditions are right.
That’s all for now. Thanks for your attention.
Don't miss Steve's Legal Update at the SBICA Luncheon on August 27th.
See the events calendar for more information......
Dear Joan:
I work for a large company that has favoritism issues and a committee was formed to resolve it. We met four times and submitted our charter for the team. Then, with the announcement of some big organizational changes (the company was split), we were told to put everything on hold. We have some questions:
Could favoritism be a form of discrimination?
What can be done when it goes on and everyone can see it?
I believe favoritism violates ethic policies. What can be done?
Management level favoritism, what can be done?
Question:
If the applicant does not like the findings of a panel selected QME report, can the applicant hire and have accepted for evidence a paper review of the QME report where the applicant's reviewer finds the panel selected QME report inappropriate? If so what codes are applicable and how would the defense get the paper review admissible? Let's say the applicant is not happy with the findings of impairment and or disability award.
Peter
Response:
On the facts presented in your questions, Labor Code § 4062.1. Procedure where employee unrepresented by attorney, (reprinted below) governs unrepresented Panel QMEs. As long as (d) is complied with, Applicant does not have a right to challenge the Panel QME with another QME of his/her choosing. In any event, they have no right to get one on their own outside of the Panel process. Any such reports are inadmissible. Subsection (e) says there are no additional QMEs if the applicant becomes represented. The PTP can comment on the Panel QME ... but not another QME hired outside of 4062.1 process.
a) If an employee is not represented by an attorney,
the employer shall not seek agreement with the employee on an agreed
medical evaluator, nor shall an agreed medical evaluator prepare the
formal medical evaluation on any issues in dispute.
(b) If either party requests a medical evaluation pursuant to Section
4060, 4061, or 4062, either party may submit the form prescribed by
the administrative director requesting the medical director to assign
a panel of three qualified medical evaluators in accordance with Section
139.2. However, the employer may not submit the form unless the employee
has not submitted the form within 10 days after the employer has furnished
the form to the employee and requested the employee to submit the form.
The party submitting the request form shall designate the specialty
of the physicians that will be assigned to the panel.
(c) Within 10 days of the issuance of a panel of qualified medical evaluators,
the employee shall select a physician from the panel to prepare a medical
evaluation, the employee shall schedule the appointment, and the employee
shall inform the employer of the selection and the appointment. If the
employee does not inform the employer of the selection within 10 days
of the assignment of a panel of qualified medical evaluators, then the
employer may select the physician from the panel to prepare a medical
evaluation. If the employee informs the employer of the selection within
10 days of the assignment of the panel but has not made the appointment,
or if the employer selects the physician pursuant to this subdivision,
then the employer shall arrange the appointment. Upon receipt of written
notice of the appointment arrangements from the employee, or upon giving
the employee notice of an appointment arranged by the employer, the
employer shall furnish payment of estimated travel expense.
(d) The evaluator shall give the employee, at the appointment, a brief
opportunity to ask questions concerning the evaluation process and the
evaluator's background. The unrepresented employee shall then participate
in the evaluation as requested by the evaluator unless the employee
has good cause to discontinue the evaluation. For purposes of this subdivision, "good cause" shall include evidence that the evaluator is
biased against the employee because of his or her race, sex, national
origin, religion, or sexual preference or evidence that the evaluator
has requested the employee to submit to an unnecessary medical examination
or procedure. If the unrepresented employee declines to proceed with
the evaluation, he or she shall have the right to a new panel of three
qualified medical evaluators from which to select one to prepare a comprehensive
medical evaluation. If the appeals board subsequently determines that
the employee did not have good cause to not proceed with the evaluation,
the cost of the evaluation shall be deducted from any award the employee
obtains.
(e) If an employee has received a comprehensive medical-legal evaluation
under this section, and he or she later becomes represented by an attorney,
he or she shall not be entitled to an additional evaluation
Hope this information helps...
Thanks,
Stephen L. Kline
ARMSTRONG LAW FIRM
Calif. Court Rules Employer Not Responsible for All Permanent Disability
The California Supreme Court has rejected an appeal of an injured electrician, affirming a lower court's ruling that an employer is not responsible for permanent disability it did not cause.
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California Construction Sweep Yields 33 Citations
Investigators with the California Economic and Employment Enforcement Coalition (EEEC) recently targeted businesses in the construction industry who were operating illegally, to root out those companies that are avoiding labor, tax and licensing laws, safety and health regulations and carry no workers' compensation insurance for their employees.
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Medical treatment guideline regulations approved
The Division of Workers' Compensation's medical treatment utilization schedule (MTUS) regulations have been approved
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Utilization review enforcement regulations approved
The Division of Workers' Compensation's utilization review enforcement regulations have been approved by the Office of Administrative Law (OAL).
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Division of Workers’ Compensation urges claims administrators to confirm they correctly paid temporary disability benefits for injuries that occurred on or after April 19, 2004
The Worker’s Compensation Appeals Board (WCAB) on June 13, 2007, issued an en banc opinion in the case of Valeri Hawkins v. Amberwood Products; and State Compensation Insurance Fund, which holds that
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